Property I Professor Donald J. Kochan Class 9B

Today’s Readings Pages Pages Introduction to Estates Introduction to Estates

Introduction to The System of Estates “For property law, the system of estates represents the most obvious link between past and present.” D&K Chap II “For property law, the system of estates represents the most obvious link between past and present.” D&K Chap II Understand that this is an issue of “status” – hierarchy and priority Understand that this is an issue of “status” – hierarchy and priority Classification of estates in land matter – what do you have, what was transferred, and what can you as the recipient transfer yourself thereafter, i.e. what do you have because you can only transfer as much as you OWN Classification of estates in land matter – what do you have, what was transferred, and what can you as the recipient transfer yourself thereafter, i.e. what do you have because you can only transfer as much as you OWN

Cardozo Excerpt “[T]here can be no progress without history.” “[T]here can be no progress without history.” Many students ask, if this is old, why are we reading this? Read the Cardozo excerpt and understand that “origins” help us understand contemporary rules. Why did we move “up from feudalism” and what were the reasons and what were the advantages of the changes? Many students ask, if this is old, why are we reading this? Read the Cardozo excerpt and understand that “origins” help us understand contemporary rules. Why did we move “up from feudalism” and what were the reasons and what were the advantages of the changes?

Feudalism Tenure – Understand it was about control and the feudal power contrasted with individualism Tenure – Understand it was about control and the feudal power contrasted with individualism Compare feudal incidents and duties and liabilities to the lord with slavery and indentured servitude Compare feudal incidents and duties and liabilities to the lord with slavery and indentured servitude The history re homage, aids, forfeiture, liabilities, wardships, escheats, are all about limitations on free alienability The history re homage, aids, forfeiture, liabilities, wardships, escheats, are all about limitations on free alienability

The Decline of Feudalism Understand the Statute of Quia Emptores and the Statute of Uses as “the beginning of the end.” Understand the Statute of Quia Emptores and the Statute of Uses as “the beginning of the end.” Economic values won the evolutionary struggle in legal arrangements re real property Economic values won the evolutionary struggle in legal arrangements re real property As market exchange became more sophisticated, so did the demand for individual ownership become demanded – for both autonomy values and utilitarian ones As market exchange became more sophisticated, so did the demand for individual ownership become demanded – for both autonomy values and utilitarian ones Consider the contrast between feudal concepts and a more limited government, such as that attempted here at the Founding Consider the contrast between feudal concepts and a more limited government, such as that attempted here at the Founding

Decline of Feudalism (cont.) The point is that OWNERSHIP, true ownership and dominion, was necessary for the progress of industry and commerce The point is that OWNERSHIP, true ownership and dominion, was necessary for the progress of industry and commerce The historical development toward individualism and personal dominion was at least in part because private property ownership without the control of a lord incentivized productive behavior The historical development toward individualism and personal dominion was at least in part because private property ownership without the control of a lord incentivized productive behavior Thus, the “gradual dissolution” of limitations on ALIENABILITY Thus, the “gradual dissolution” of limitations on ALIENABILITY

Fee Tail “O to A and the heirs of his body” “O to A and the heirs of his body” Attempt at controlling alienability Attempt at controlling alienability Consider presumption for alienability with satisfying the preferences of the current owner Consider presumption for alienability with satisfying the preferences of the current owner “odious means of of perpetuating a hereditary aristocracy” or dynasty “odious means of of perpetuating a hereditary aristocracy” or dynasty Generally Abolished Generally Abolished Consider (a) how something written like a fee tail will be rewritten; and (b) how to accomplish similar results (such as through the creation of life estates – alternative means to satisfy similar preferences) Consider (a) how something written like a fee tail will be rewritten; and (b) how to accomplish similar results (such as through the creation of life estates – alternative means to satisfy similar preferences)

Fee Simple Absolute It is the strongest estate; today strongest level of alienability It is the strongest estate; today strongest level of alienability O to A, or O to A and his heirs O to A, or O to A and his heirs No Restrictions – Whatever sticks O is giving away he is giving away completely No Restrictions – Whatever sticks O is giving away he is giving away completely

Fee Simple Please do the Problems following the reading; again, you need to be able to explain who owns what when faced with changed circumstances Please do the Problems following the reading; again, you need to be able to explain who owns what when faced with changed circumstances Be able to distinguish between heirs, issue, ancestors, and collaterals; and understand escheat (the reasons and circumstances for it) Be able to distinguish between heirs, issue, ancestors, and collaterals; and understand escheat (the reasons and circumstances for it)

Modern Implications Ask yourself throughout the class how and whether rules are developed in favor of alienability and marketability. Ask yourself throughout the class how and whether rules are developed in favor of alienability and marketability. Never forget the rules fall across the spectrum of autonomy and utility Never forget the rules fall across the spectrum of autonomy and utility And relatedly, always consider the rule of property as a contest between individualism and government control – and the human values or desired outcomes from such rules And relatedly, always consider the rule of property as a contest between individualism and government control – and the human values or desired outcomes from such rules